Petitioner contends that the statute violates the prohibition against ex post facto laws contained in Article 1 of the U.S. Constitution. Article 1 forbids enactment of legislation which imposes punishment for an act not punishable at the time committed or which imposes punishment in addition to that prescribed. The purpose of the prohibition is to assure that legislative acts provide for fair warning and to permit reliance on the language of a statute until it is explicitly changed. For a penal or criminal law to be ex post facto, it must be retrospective–i.e., it must apply to events occurring before its enactment–and it must disadvantage the offender affected by it.
The Padlock Law is civil in nature and therefore is not an ex post facto law. It does not punish conduct but, rather, is aimed at nuisance abatement. Critical to ex post facto is fair notice and whether punishment is more onerous than that provided for by the law in effect on the date of the offense. Clearly, the ex post facto prohibition is not violated by the Padlock Law.
Petitioner further contends that his due process rights were violated in that he was deprived of property rights by unduly repressive means not substantially related to achieving legitimate governmental ends–e.g., (a) by the hearing procedures, which he alleges vest unbridled discretion in the police department, and by discriminatory enforcement; (b) by the provision that closure can be ordered without knowledge of, or participation in, the criminal activity by the owner or lessee, and (c) by the statutory presumption relating to continuing criminal activity.
Far from being unconstitutional, the Padlock Law and regulations carefully protect individual rights by providing for notice of arrests and of proceedings, so that the owner or lessee can abate the suspected nuisance. Ignorance of the offenses, or non-participation therein, is not a defense. Those having a property interest have a duty to use whatever legal means is available to see that the property is not used for unlawful purposes.
Petitioner’s assertion that the statutory presumption of continuing illegal activity from two or more convictions in the previous year, coupled with an arrest within 30 days of notice of a Padlock Law hearing, is unconstitutional, is without merit. The conclusion of continuing criminal activity is rationally based, and therefore the presumption is not facially unconstitutional In civil cases, so long as there exists a rational connection between the proved fact and the presumed fact, there can be no serious due process considerations.
Petitioner’s discriminatory enforcement claim, apparently pursuant to the equal protection clause of the U.S. Constitution, is also without merit. It is well settled that one who alleges discriminatory enforcement must meet the heavy burden of showing conscious, intentional discrimination. The conscious exercise of some selectivity in law enforcement is not itself unconstitutional. Petitioner has presented absolutely no evidence of discriminatory enforcement. Domestic violence was not involved.
Petitioner’s claim that the hearing procedures, provided for pursuant to the Padlock Law and regulations, are unconstitutional, because the hearing officer is an employee of the police department, must fail. The hearing procedures involved herein do not necessarily affect impartiality. The regulations provide for an impartial hearing officer who was not involved in the case prior to the hearing. The fact that the hearing officer is employed by the police department does not render him constitutionally unacceptable. Petitioner has shown no evidence to back up his assertion that the procedure results in the hearing officer being biased and, therefore, he has failed to demonstrate constitutional infirmity.
Accordingly, the court held that, the petitioner’s application, pursuant to CPLR Article 78, challenging the constitutionality of the “Padlock Law” (Administrative Code of the City of New York §§ 436-8.0 and 436-8.1) and the regulations promulgated thereunder, is denied, and the petition is dismissed.